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Famely v. Famely

Decided: January 17, 1966.

HELEN FAMELY, PLAINTIFF-RESPONDENT,
v.
MAX FAMELY, DEFENDANT-APPELLANT



Sullivan, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

[90 NJSuper Page 129] Defendant appeals from an order of June 15, 1964 denying his motion to vacate the final judgment entered herein on April 4, 1963 and from an order of August 10, 1964 denying his motion to amend the June 15, 1964 order.

This action was instituted by plaintiff wife on April 24, 1962, to restrain the prosecution of a divorce action which the husband had instituted in the State of Nevada against her, allegedly without cause and while he was actually domiciled in New Jersey. An order to show cause dated April 24, 1962 and returnable May 3, 1962 issued on the filing of the complaint and an accompanying affidavit. It contained a temporary restraint against further prosecution of the Nevada action.

Although defendant, then in Nevada, admittedly received on April 30, 1962 the order to show cause which was mailed to him as provided by said order, he nevertheless proceeded with the Nevada action. On May 2, 1962, a decree of divorce was entered therein. An order granting plaintiff an interlocutory injunction was entered in the New Jersey action on May 11, 1962.

Plaintiff has never appeared in any Nevada proceedings. Prior to his motion to vacate the final judgment herein served on April 10, 1964, defendant never appeared in the New Jersey proceedings.

On November 5, 1962 plaintiff filed a petition for leave to file an amendment by way of supplement to her complaint to recite the entry of the Nevada decree and its alleged invalidity. The order granting such leave entered November 5, 1962 directed that defendant have 20 days after service to appear or answer. Personal service of the papers was made on defendant in Las Vegas, Nevada, on November 28, 1962.

An interlocutory judgment and order for proofs ex parte was entered herein on January 30, 1963. After the taking of oral proofs on April 4, 1963, a final judgment was entered that day decreeing:

"* * * that the said decree of absolute divorce granted by the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, dated the 2nd day of May, 1962, be and the same is hereby declared to be null, void and of no force or effect in this state.

It is further ordered that the defendant, Max Famely, present the truth to the Eighth Judicial District Court of the State of Nevada, in

and for the County of Clark and request that its said Decree be vacated."

Defendant received a copy of the final judgment on April 8, 1963.

Allegedly in response to the direction of the final judgment that he "present the truth" to the Nevada court, defendant on December 10, 1963 instituted a new action against the wife in the Nevada court seeking "a declaratory judgment to adjudge the marital status between him and the defendant" and gave the wife notice thereof by mail. When she did not respond he, in February 1964, obtained a decree of the Nevada court adjudging that the prior divorce decree of May 2, 1962 was "a valid Nevada divorce." We find no merit in defendant's argument that the declaratory judgment proceeding instituted in Nevada was a compliance with the provision of the final judgment in this cause which adjudged the Nevada divorce invalid and required the husband to present the truth ...


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